Relying on a Rapist

Civil libertarians battle a city DNA database the hard way

Last year, Troy Hendrix was on trial for the kidnapping, rape, and murder of a Hunter College student named Romona Moore, but attorneys at Legal Aid, the NYCLU, and the Innocence Project still wanted him to be their poster boy.

The civil libertarians didn’t think Hendrix was innocent of the crimes he was charged with. That was irrelevant, as far as they were concerned. Instead, they saw in Hendrix an opportunity to make a test case about the way DNA lab results are handled by local authorities. Hendrix, a 22-year-old with an IQ of 70, stood accused with his co-defendant, Kayson Pearson, of chaining and drugging Moore before beating her to death with a hammer. Hendrix then allegedly raped her corpse. The two men were also charged with raping and sodomizing a 15-year-old girl just days after they killed Moore.

Before trial, a DNA sample from Hendrix had been routinely obtained by prosecutors. Such samples not only can be useful in proving the guilt or innocence of defendants in criminal trials, they’re also prized by both law-enforcement agencies that want to connect criminals with unsolved crimes and by prisoner advocates that want to see innocent inmates freed.

New York State maintains a DNA database that keeps profiles of convicted criminals, which the civil-rights advocates don’t object to. But what had them hacked off in the Hendrix case was that the accused corpse-fucker’s DNA sample was going to be handed over to a database, called “Linkage,” that the city maintains, and that the sample would be put into the Linkage system while Hendrix was still on trial and before he’d been convicted of anything.

Some might find that a rather fine distinction to make, but it’s long been a source of irritation for Legal Aid attorney Bob Newman. “Once charges against you have been dismissed, then you shouldn’t have your DNA permanently on file simply because you were arrested,” contends Newman. “That gives too much power to the police.”

Newman and his colleagues at the NYCLU and the Innocence Project hoped that they could use the Hendrix case to get the Linkage database shut down altogether. They filed an amicus brief saying that using Hendrix’s DNA in this way violated his rights. Before he had been found guilty of anything, having his DNA in the Linkage system would allow law enforcement to go on a fishing expedition to see if he could be linked to other crimes. And even if he was ultimately acquitted of murder at trial, Hendrix’s DNA profile could still remain in the database, automatically including him as a suspect in all searches of future crimes. This, they argued, undermines the whole innocent-until-proven-guilty thing.

The office of the chief medical examiner, which maintains the database, countered with the but-it-gets-criminals-off-the-streets defense; they reported that more than 70 DNA samples of suspects had been matched to crime-scene samples from unsolved cases in less than a decade. Some of those suspects had voluntarily given DNA samples to rule them out of suspicion of recent crimes, but when their DNA samples were run in Linkage, they were connected to long-ago rapes and murders. In sworn testimony, the city’s criminal justice coordinator, John Feinblatt, reported: “The state databank would not have been able to connect these defendants to their crimes unless and until they were convicted of DNA-qualifying offenses, a process which could take months or even years. The Linkage database addresses this critical gap.” The ACLU doesn’t agree, of course. “If your idea of what’s reasonable is ‘Wow, look, we caught the guy,’ that can justify absolutely anything,” says Tania Simoncelli, an ACLU science and technology fellow. “So maybe we should have cameras in everyone’s living rooms” if it helps stop crime.

Judge Albert Tomei agreed with Newman and the civil libertarians, blocking Hendrix’s DNA from being entered into Linkage as long as he hadn’t been convicted. But he didn’t order that the city discontinue Linkage itself.

Meanwhile, poster boy Hendrix did his part to shine the best possible light on the rights of the accused.

During trial, Hendrix attacked a court officer in an attempt to grab his gun, while his co-defendant stabbed one of their own defense lawyers in the neck with a plexiglass shank. When Hendrix was eventually convicted and sentenced to life in prison without parole, the judge told him he was lower than an animal.

“He was not the perfect poster person,” admits NYCLU staff attorney Beth Haroules, who worked on the case. Despite a bad track record with this issue—the NYCLU also challenged the Linkage database in 2002 during a brutal rape case—civil libertarians are now trying a different tack. Lawyers and policy directors at the Innocence Project and the ACLU have warned audiences across the country against voluntarily providing DNA samples. “DNA is not like a fingerprint; it reveals all sorts of information about your family, predisposition to diseases, and ancestry,” says Simoncelli, the ACLU fellow. They’ve also trumpeted state legislation that would require that DNA profiles of innocent people be destroyed after investigations are concluded. (The office of the chief medical examiner, which maintains Linkage, did not respond to repeated queries about its database.)

Newman is continuing a search for more sympathetic cases of people who want their DNA profiles expunged from Linkage and are willing to sue the city. For now, his best bet appears to be another rape case.

In that instance, DNA was taken in connection with an arrest in the Bronx. The original charges were dropped, but using the defendant’s DNA profile from the Linkage database, police connected him with a rape in Brooklyn.

Newman declined to provide any other details, saying that he had not gotten permission to discuss the case publicly. But those details, like in the case of Hendrix, may not really help matters.

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